Conlon v Kelly

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinnes
• Judgment Date: 14 December 1999
• Neutral Citation: [1999] IEHC 58
• Court: High Court
• Date: 14 December 1999

[1999] IEHC 58

THE HIGH COURT

no.479/98 JR

CONLON v. KELLY & DPP & SMYTH

JUDICIAL REVIEW

BETWEEN

JAMES ALAN CONLON

APPLICANT

AND

HIS HONOUR JUDGE CYRIL KELLY AND THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE HONOURABLE MR JUSTICE ESMOND SMYTH

RESPONDENTS

Citations:

LARCENY ACT 1916 S20(iv)(A)

LARCENY ACT 1990 S9

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 40.2

CONSTITUTION ART 38

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)

RSC O.49 r6

RSC O.125

CONNELLY V DPP 1964 AC 1254

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S5

CRIMINAL JUSTICE (ADMINISTRATION) ACT 19241924 SCHED 1 R3

RYAN & MAGEE IRISH CRIMINAL PROCESS 253–291

Synopsis

Criminal Law

Criminal; judicial review; certiorari; prohibition; applicant had been tried on a number of counts of fraudulent conversion; retrial ordered after jury failed to agree on the verdict; further charges brought against applicant; orders made by respondent consolidating indictments; applicant seeking certiorari quashing the orders of the respondent and an order prohibiting the second named respondent from prosecuting the applicant with the additional counts added; whether the respondent had jurisdiction to consolidate the two indictments; whether the applicant should be denied relief because he failed to apply for a separate trial on the different counts pursuant to s.6(3), Criminal Justice (Administration) Act, 1924 .

Held: The respondent had ample jurisdiction to make the orders which he did; the appropriate remedy lies in the provisions of s.6(3); reliefs refused.

Conlon v. His Honour Judge Kelly - High Court: Mc Guinness J. - 14/12/1999

The resignation of the first respondent did not affect the application as the applicant did not have a function in the proceedings. The purpose and effect of the orders of 21 July 1998 and 3 November 1998 was the joinder of the additional charges to the bill of indictment. The first respondent had jurisdiction to make the orders as provided for by the Criminal Justice (Administration) Act, 1924, Section 5. The joinder of the charges did not damage the applicant’s constitutional rights. Held by the High Court in refusing the reliefs sought.

1 Mrs Justice McGuinnes dated the 14th day of December 1999.

2 These Judicial Review proceedings arise from the prosecution on indictment of the Applicant on a number of counts of fraudulent conversion contrary to Section 20 (iV) (A) of the Larceny Acy, 1916 amended by Section 9 of the Larceny Act, 1990, together with one count of Larceny. It is alleged by the prosecution that the Applicant, acting in the purported character of a financial advisor, obtained sizeable sums of money from a number of persons in the Galway area for the purported purpose of investing this money with a company in the Isle of Man, and that he did not so invest the money but instead used it for his own purposes. These purposes included the building of a house or hotel in County Clare.

3 The Applicant was first charged with a number of these offences, all of which involved monies given to him by a Mrs Fiona Conneely, on the 12th August, 1996. He was brought before the District Court on that day. On the 19th July, 1996 he was granted bail. A book of evidence was served on the 17th October, 1996 and on the 31st October, 1996 he was sent forward for trial on indictment to Dublin Circuit Criminal Court. He pleaded not guilty and on the 4th February, 1998 was tried on Indictment Bill No. 814/96 before His Honour Judge groarke and a jury. Following a trial of six days the jury failed to agree on the verdict and were discharged by the trial judge, who directed a new trial. The Applicant was remanded on bail.

4 Prior to the Applicant's trial in February 1998 he had been on the 8th August 1997 charged on further similar but distinct counts involving monies alleged to have been paid to him by two other persons. He was remanded on bail on these charges from time to time and eventually on the 5th March, 1998 was sent forward for trial to Dublin Circuit Criminal Court.

5 On the 21st July, 1998 Counsel for the Director of Public Prosecutions made an application to the first named Respondent, Judge Cyril Kelly (as he then was) to join in one bill of indictment the charges on which the Applicant had already been tried and the additional charges on which he had been sent forward for trial. The first named Respondent, having heard submissions from both prosecution and defense Counsel, granted leave to the Director of public Prosecutions to

" consolidate this indictment number 258/98 with indictment number 814/96, and the court doth give liberty to the prosecution to lodge a consolidated indictment"

6 The matter came into the Court list for mention on 3rd November, 1998 and the first Respondent made a further Order granting liberty to the prosecution " to consolidate indictments numbers 814/96 and 258/98 and to lodge indictment number 814A/96 in lieu of such indictments".

7 On the 14th December, 1998 the Applicant sought leave to issue Judicial Review proceedings seeking on Order of Certiorari quashing the Orders of the first named Respondent made on the 21st July, 1998 and the 3rd November, 1998, together with an Order of Prohibition prohibiting the second named Respondent from prosecuting the Applicant on indictment Bill No. 814A. Leave was granted by the learned Geoghegan J. and the prosecution against the Applicant was stayed until the determination of these proceedings.

8 When His Honour Judge Cyril Kelly was appointed as a Judge of the High Court the Applicant caused the name of the Honourable Mr. Justice Esmond smyth, President of the Circuit Court, to be added as a Respondent to the proceedings lest it be held that Judge Kelly could no longer be a Repondent. However, at the hearing before me it was accepted that there was no necessity for this procedure and that Mr. Justice Smyth had no function in the proceedings.

9 A number of grounds upon which the reliefs of certiorari and prohibition are sought by the Applicant are set out in his originating statement. These were helpfully summarised by Senior Counsel for the Applicant, Mr. Mill-Arden, in the course of his submissions to this Court.

10 The Applicant argues that if there is to be a retrial before a jury, as ordered by His Honour Judge Groarke, he should be retried on the same indictment and no additional counts should be added. He submits that the effect of uniting both sets of counts under Bill No. 81A is prejudicial to him, and that to try him on Bill No. 814A would be in breach of his constitutional rights, in particular his right to equality under Article 40.1, his personal rights under Article 40.d, his right to a good name under Article 40.2 and his right to a fair trial under Article 38. The Applicant also submits that the first named Respondent had no jurisdiction to consolidate the two Bills of Indictment and that in so doing he was wrong in law.

11 A Statement of Grounds of Opposition was filed by the second named Respondent, the Director of Public Prosecutions, on the 4th February, 199. The second named Respondent in this Statement argues that rather than a " consolidation" of the Bills of Indictment there has been in fact a joinder of charges. The second named Respondent relies on the provisions of the Criminal Justice (Administration) Act, 1924and submits that the joinder was reasonable in the circumstances, and is in no way prejudicial to the Applicant. If any prejudice should occur this be countered by proper directions from the trial Judge to the jury. The second named Respondent specifically denies the other claims made by the Applicant with regard to the breach of his constitutional rights and with regard to the jurisdictional and legal basis of the orders of the learned Circuit Judge. Finally, the second named Respondent submits that relief should be denied to the Applicant because he has failed to...